NEWS ANALYSIS : Experts Say Suit Over Immigrant Costs Will Fail

Gov. Pete Wilson’s lawsuit seeking federal reimbursement for the cost of imprisoning illegal immigrants convicted of felonies in California has little chance of succeeding in court, according to legal experts interviewed by The Times.

Wilson’s complaint, to be filed today in U.S. District Court in San Diego, will quickly run into what amounts to a legal brick wall: a doctrine that says the federal government cannot be sued for damages unless it first consents to the lawsuit.

But even if the state could find a way past that obstacle, which would require congressional approval, the suit’s central argument--that the federal government is violating the state’s sovereignty--relies on a theory that the U.S. Supreme Court has viewed with considerable skepticism for at least half a century, constitutional scholars said.

“This lawsuit really has no chance of success,” said Erwin Chemerinsky, a USC constitutional law professor. “It’s purely being done for political reasons. It’s using the legal system to make a political statement.”

Wilson aides dispute that charge. Although acknowledging that the suit is breaking new legal ground, they contend that the complaint has considerable merit. The state, they say, should not abandon its case simply because it might have difficulty winning it.

“It’s not going to be easy,” said Janice Brown, Wilson’s top legal adviser. “But I don’t concede it’s not worth trying. There are some very real legal questions here that need to be addressed. We are not filing a lawsuit that we believe to be utterly frivolous.”

The state’s lawsuit seeks $377 million from the federal government to cover the costs of incarcerating nearly 17,000 illegal immigrants who have been convicted of felonies, enough inmates to fill eight prisons. The state also wants $1.6 billion as reimbursement for the cost of building those eight extra prisons.

The suit also asks the court to require the U.S. Immigration and Naturalization Service to begin deportation proceedings against all illegal immigrant felons and, in the case of Mexicans, to force the INS to deport felons who have completed their sentences to a place deep within their home country, rather than at the border.

The suit is the first of three Wilson intends to file against the federal government. The other two will seek reimbursement for the cost of educating illegal immigrants in public schools, which the governor estimates at $1.7 billion annually, and for providing emergency health care, which he says costs California $400 million a year.

Several legal experts interviewed by The Times questioned whether the state could even get a hearing on its lawsuit. They said it seems to run counter to the so-called sovereign immunity of the federal government, which bars claims seeking monetary damages.

That protection has been waived by Congress in limited areas, such as claims based on the negligence of a federal employee. A person run over by a postal truck, for example, could file suit and collect damages. But no such waiver exists for California to exploit in this instance, the lawyers said.

“I’ve yet to hear anyone explain why this lawsuit isn’t flat-out barred,” Chemerinsky said.

Brown, Wilson’s legal adviser, said the suit does not address the immunity issue. If federal lawyers raise it as a defense, she said, the state will respond.

“We don’t confront it,” Brown said. “We have assumed that what we’re doing can be done.”

If the state is able to establish its right to sue, the real legal wrangling will begin.

The California lawsuit, like one filed earlier by Florida and suits contemplated by several other states, seeks to reinvigorate the concept of federalism--the idea that the 50 states are independent entities joined by mutual consent to a federal government whose powers are strictly limited.

In this vein, the suit argues, fixing federal immigration policy “is essential to the survival of California.”

It adds: “At issue is whether the state of California will remain a sovereign government with the flexibility to establish policies and priorities responsive to the will of its electorate.”

Allowing the federal government to force the states to implement policies using state-generated tax funds, the complaint says, turns the U.S. Constitution into a “suicide pact.”

The Constitution’s 10th Amendment assures state sovereignty, and until the mid-1930s it was commonly used to protect states from the intrusion of the federal government into their affairs. But beginning with challenges to President Franklin Roosevelt’s New Deal social programs, the high court started rejecting 10th Amendment claims and has been doing so ever since.

Since 1937, the court has ruled for the states in only two cases, and one was later overturned. In the one that still stands, a 1992 ruling in a case brought by New York, the court struck down a federal law requiring the states to build nuclear waste dumps or else take possession of waste generated by private industry.

Some scholars expect a similar challenge to the recently passed Brady Bill, which requires the states to impose waiting periods on the purchase of handguns and conduct background checks on the potential buyers.

In both these instances, the federal requirement on the states is explicit. California, in contrast, is arguing that the federal government, by its inaction on immigration, is forcing the state to spend money it would rather use for other purposes.

Unlike the other cases, where states have asked the court to stop the federal government from doing something, California wants the court to require action on the part of Congress.

“The Constitution is a set of limits on the government,” said Julian Eule, a UCLA law professor. “When you seek to force the government to do something, you are treading on some fairly thin ice. I don’t see how you can come along and force the government to dole out this money.”

Deborah Merritt, a University of Illinois law professor, said California’s claim would be a “dramatic leap ahead, a shift in what the court has done so far.”

The federal government, she said, probably could open its borders to everyone and not be liable for the added state costs. By extension, it is not likely to be held responsible for failing to stop those immigrants it says it would like to keep out.

An advocate of states’ rights, Merritt wrote a paper cited by the court in the 1992 New York decision. In her paper, Merritt argued that the states are guaranteed a Republican form of government, “where the (state) government is responsive to its people, not some outside (federal) government.”

Although Merritt said she doubted that kind of case could be made by California, Brown said that is precisely the line of reasoning California will pursue.

“We’re trying to say that the process can fail even when it seems to be working,” said Brown. “If the decisions you make don’t impose the costs directly on the people who elect you, then you are not politically accountable.”